By Norman Eisen and Norman Ornstein / Special to The Washington Post
In the middle of a brazen nationwide assault on voting rights, of a kind we have not seen since Jim Crow was established after the Civil War, some are skeptical that Democrats in Washington, D.C., will respond. If they don’t, that would allow the filibuster to block voting rights legislation and consign the party (and its majority of U.S. voters) to possible permanent minority status.
After decades of studying and working with the Senate, we think the signs point the other way: There are seven reasons to believe that the filibuster will be reformed and voting rights legislation will be passed by the House and Senate and signed into law by President Biden.
Why reform the filibuster: The “big lie” that the 2020 election was stolen did not end with Donald Trump’s departure from office. It has only intensified, with over 216 bills in more than 41 states targeting our system of voting based on that falsehood. Trump and his acolytes in many of these states have continued to pour on the disinformation. They are trying to undo the things that made the 2020 election one of the most successful in history, such as early voting, drop boxes, mail-in voting and high minority turnout. A number of these bills would even make it possible for Trump’s allies in state legislatures to take steps to reverse future elections, irrespective of the will of the voters.
That’s where Congress comes in. Lawmakers can set national minimums for best practices to prevent open targeting of minority voters and block legislative hijacks of election outcomes. Those issues are addressed by bills such as the For the People Act (which already passed the House as H.R. 1), the John Lewis Voting Rights Act (which passed the House as H.R. 4) and the Preventing Election Subversion Act of 2021 sponsored by Sen. Rafael Warnock, D-Ga., and Rep. John Sarbanes, D-Md.
The obstacle of course, is the filibuster, which has already twice blocked the For the People Act. But that can change. As we explain in a new paper, reform is possible if 51 votes can be mustered in the Senate: all 50 Democrats and Vice President Kamala Harris, voting as the presiding officer to break a tie. As when the GOP eliminated the filibuster for Supreme Court nominations in 2017, modifying it to pass voting rights legislation can be achieved with a bare majority.
First, Majority Leader Charles Schumer, D-N.Y., would raise a point of order that cloture on election-related legislation can be decided by a simple majority vote, which would be denied by the presiding officer (acting on advice of the parliamentarian). The leader would then appeal the ruling to the Senate; in a vote which, if it’s done in reconsideration of a failed cloture vote, is not subject to debate. The Senate would then vote on the appeal. If the appeal won a simple majority, the new precedent would prevent the filibuster of voting legislation. It would leave the filibuster in place for other legislation (though it would obviously also provide a road map for eliminating it in other cases).
That so-called “nuclear option” is only one of many examples of how filibuster reform could be achieved. While the workings of the Senate are inherently unpredictable, we think some kind of filibuster reform is more likely than not before the end of 2021 to pass voting rights legislation.
First, Tthe sentiment in the Democratic caucus seems to be swinging decidedly in the direction of filibuster reform. According to The Washington Post, 19 of the 50 Democratic senators are committed to eliminating the filibuster, another 15 are committed to changes and 14 are open to them, with only Joe Manchin,D-W.Va., and Kyrsten Sinema, ,D-Ariz., more reserved; so far. Even Biden, formerly a long-serving senator and a champion of its traditions who had long been viewed as an obstacle, has reportedly come around.
Second, Manchin is not as immovable an obstacle as he appears. In March, Manchin suggested that he would be open to using the reconciliation process to pass voting rights legislation if all efforts at bipartisanship failed. Our report explains how that intricate maneuver could work; and, as importantly, Manchin’s statement shows he is contemplating voting rights legislation by a simple majority. He has since expressed openness to other reforms of the kind we also outline in our paper, such as lowering the cloture threshold and shifting the onus onto the Senate minority to maintain the filibuster. When asked about lowering the vote total needed for cloture, he said “I’m open to looking at it, I’m just not open to getting rid of the filibuster, that’s all. …”
Manchin has also offered a compromise proposal of his own in response to H. R. 1 and has reportedly spent considerable time negotiating details; a deal is said to be near, and he is actively seeking GOP support. It seems improbable that he would be spending all that time on the legislation if he were not at least willing to consider reforming the filibuster to push his plan into law. According to reports, he is getting what he wants. When that happens, he is a compromiser, as he has proven over and over again throughout his long career.
Third, if Manchin agrees to reform, Sinema seems less likely to stand truly alone against her caucus and a bill she has already said she supports. Though Sinema has indicated opposition to “ending” and “eliminating” the filibuster, a closer look at her words makes clear that she might not oppose all modifications. That is why she has called for an open debate and has been careful not to say she opposes any reform. In an op-ed for The Washington Post, Sinema called for the Senate “to debate the legislative filibuster, so senators and our constituents can hear and fully consider the concerns and consequences.”
Fourth, there is a rich menu of options to do just that: reform, not eliminate, the filibuster. The smoothest path would be for the Senate to create an exception allowing majority votes to pass voting reforms. We call that “democracy reconciliation” because it is akin to the budget reconciliation exception the Senate already allows for certain fiscal legislation. That was done by statute, whereas here the easiest way to proceed is by a majority vote on a parliamentary question. But the outcome is the same: voting matters heretofore will be decided by a bare majority.
There are many other options that aim to restore the filibuster’s balance between minority rights and majority rule. They include reducing to a majority the number of senators needed to open debate in the face of a filibuster; starting at 60 but creating a diminishing threshold for cloture, so that each successive vote on an individual piece of legislation ratchets down the number needed to move on to a final vote (giving the minority significant time to try to persuade the country of their point of view but giving the majority the right to a vote); or shifting the burden from the majority to the minority by flipping the numbers, requiring 41 votes to continue debate instead of the current requirement of 60 needed to proceed to a vote. If filibuster reform happens, some combination of the subject-matter carve-out and multiple other reforms is likely given Manchin and Sinema’s apparent inclination to preserve the rule in some substantial form.
Fifth, the brazen outrage of GOP behavior makes filibuster reform much more likely. Manchin was already open to reform back in the spring, even before many of the current GOP voter suppression and election subversion laws had passed in several states. He was particularly angry at the filibuster blocking creation of a commission to examine the Jan. 6 violent insurrection. Now, it’s even clearer that state and national Republicans are refusing to compromise on these issues.
Sixth, it is a matter of self-preservation for Democrats. All over the country, the ballot is being taken away from Democratic voters. Without the redistricting reforms of H.R. 1, Republicans will likely use the current cycle to practice the extreme gerrymandering that could give them long-term control of the House despite having the support of only a minority of American voters. In 2024, the worst of the state power grab bills could allow GOP-dominated state legislatures to overturn the vote of a majority of their citizens in the presidential election; what Trump sought but could not achieve last year.
Seventh, the parade of horribles that Minority Leader Mitch McConnell, R-Ky., has threatened if the filibuster is touched is overstated. Yes, there will be some drama. But the Senate will recover. It has before. It did previously when the nuclear option was deployed in 2017 to end the filibuster for Supreme Court nominees, and before that in 2013, when the filibuster was removed for all presidential nominations except Supreme Court ones.
Of course, no one really knows what Manchin, Sinema and perhaps a few other hesitant Democrats will do if they’re faced with a vote. But there’s no reason to assume they won’t modify the filibuster; and there is ample reason to think that they will. Every once in a while, logic actually prevails in the Senate. Here, it inexorably points to filibuster reform. And good thing it does: Our democracy depends upon it.
Norman Eisen, a senior fellow at the Brookings Institution, was President Obama’s ethics czar and ambassador to the Czech Republic, and served as special counsel to the House Judiciary Committee during the first Trump impeachment. Norman Ornstein, an emeritus scholar at the American Enterprise Institute, is a co-author of “One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate and the Not-Yet Deported.”